Volume 28, Number 9 E A monthly report of mass media law in Florida
Published by The Brechner Center for Freedom off i,,. ..., ,1 College ofJournalism and Communications U University ofFlorida

Judge bans crime

scene photos of

slain Sarasota girl
SARASOTA A judge banned the
release of autopsy and crime scene
photos taken of 11-year-old Carlie Brucia
after her body was found in some woods
behind a Sarasota church.
DanDannheisser, attorney for Carlie's
father, asked for the restriction because
"inappropriate, disreputable magazines
and Internet locations" would publish
the photos. He said he would prefer that
allpublic
PRIVACYaccess to the
photos be
denied, claiming photos of sexual battery
victims are not public record.
Circuit Judge Andrew Owens agreed,
ruling that no photos could be released
until there was a further order by the
court. Then, he instructed Dannheisser
to draw up an order restricting access to
the photos and circulate it among the
local media.
Following the hearing, Dannheisser
added that having the photos published
on the Internet or in a tabloid "would be
a further tragic intrusion into the lives" of
Carlie's family.
Carlie was abducted Feb. 1 as she
walked home from a friend's house. A
car wash surveillance system captured
the images of a man leading her away.
Joseph P. Smith was arrested and faces
first-degree murder, kidnapping and
sexual battery charges in the case.
Dannheisser said he was willing to
work with the media and allow reporters
access to the photographs, although the
judge would decide who would get to
view them.
"The compromise seems to fit
everyone's interest," according to media
attorney Gregg Thomas, of Holland &
Knight. Thomas added that his client,
the Sarasota Herald-Tribune, would
never print such photographs. (6/23/04)

September 2004

Jury decides county commissioner

violated law, but no criminal intent
PENSACOLA- AnEscambia County for failing to ensure that proper pu
grand jury decided that County notice was given before the meetil
Commissioner Janice Gilley and a task but also said that other county off
force violated the state's Sunshine Law knew about the meetings and faile
by failing to properly ask if they were adverti
advertise meetings, but A C C E SS according to the Open
jurors cleared them of Meetings Law. The jur

criminal wrongdoing. IVMEE I
In February, complaints
filed with the State Attorney's Office
alleged that the task force, which was
initiated by Gilley to deal with volunteer
firefighters, purposefully failed to notify
the public of its fall and winter meetings.
During these meetings, the task force
dealt with the recruitment and retention
of volunteer firefighters.
Florida's Sunshine Law requires
elected officials and government boards
to advertise their meetings to the public
ina timely manner.
The grandjury's report blamed Gilley

Iblic
ngs,
icials
d to
sed

y also

IN S (, noted that Gilley was not a
member of the task force and
merely had a support role. Therefore, she
could not be held criminally liable for the
committee's actions.
"We find that there was no purposeful
failure on anyone's part to comply with
the notice provision of the Government
in the Sunshine Law," the report said.
"Once it was brought to the attention of
county administration that this
breakdown in communication had
occurred, new procedures were
established so that this would not
happen again." (5/28/04)

Prosecutors drop two public records

violation charges a
ORLANDO Prosecutors dropped
two serious charges of public records
violations against Harold W. "Hal"
Worrall, the former Orlando-Orange
County Expressway Authority chief.
In exchange, Worrall pleaded no
contest to obstructing
inspection of a public A C C
record, which is a
noncriminalinfraction. He RECO
was fined $500 and must
pay court costs.
Originally, Orange-Osceola State
Attorney Lawson Lamar's office charged
Worrall with falsifying public records and
obstructing inspection of a public record.
Worrall was investigated after reports
surfaced that he ordered his executive
assistant to erase part of an audio tape of
a January Expressway Authority staff
meeting. Florida statutes prohibit public

against former chief
officials from altering or falsifying public
records.
On the tape, Worrall reportedly
complained about Expressway Authority
Chairman Allan Keen, Orange County
ChairmanRichCrotty and General
Counsel Kenneth W. Wright.
E SS Ultimately, the scandal led to
his resignation as the
RD S authority's executive director.
Chief Assistant State
Attorney Bill Vose said dropping the
charges was consistent with similar cases
that involved government officials and
the Public Records Law.
"We thought that a civil infraction
was a just resolution," Vose said. "He
made a mistake in the heat of the moment.
ThomasD. Sommerville, Worrall's
lawyer, said his client was satisfied with
the outcome. (7/14/04)

~C~

ACCESS RECORDS CONTINUED

Dentist files libel

lawsuit against St.

Petersburg Times
ST. PETERSBURG- A dentistwho
faced a Medicare fraud charge that was
later dropped filed a libel lawsuit against
the St. Petersburg Times.
In her lawsuit, Dr. Allena Burge named
the newspaper and reporter Candace
Rondeaux, alleging libel, false light,
II3 L invasion of privacy
LIBEL and tortious
interference. She's
seeking more than $15,000.
In June 2002, Pinellas prosecutors
charged Burge with Medicaid fraud,
saying she made improper Medicaid
claims inafour-yeartimeframe. In2003,
they dismissed the charge after
discovering Burge billed Medicaid in a
way that was recommended by someone
at the Agency for Health Care
Administration (AHCA).
According to Bob Lewis, a prosecutor
for State Attorney Bernie McCabe's
office, Burge's billing was wrong, "but
she was doing it under [the AHCA's]
guidance and under their instruction."
The newspaper's attorney, Alison
Steele, said the Times' decision to
publish stories based on the criminal
charges was protected under the U.S.
Constitution.
Burge's lawsuit says the paper's
stories exposed her to ridicule, contempt
and distrust. The suit claims the Times
failed to wait before publishing the
stories until "the truth could be
investigated and ascertained by the
proper authorities." In addition, the suit
says the newspaper failed to admit
"inaccurate and false representations in a
timely manner." (6/30/04)

DECISIONS

ON FILE
Copies of case opinions, Florida
Attorney General opinions, or
i,., 'i. ,'i reported in any issue as
on file" may be obtained upon
requestfrom the Brechner Center for
Freedom of Information, College of
Journalism and Communications,
3208 Weimer Hall, P.O. Box 118400,
University ofFlorida, Gainesville, FL
32611-8400, (352) 392-2273.

Supreme Court rules Court of Appeals

must reexamine Cheney task force case
WASHINGTON- The Supreme Court 2001. The energy task force, chaired by
ruled that the U.S. Court of Appeals in C lie nc% \\" considered exempt from the
Washington, D.C. must reexamine the open meetings and open records
case for access to Vice President Dick requirements set forth by the Federal
Cheney's energy task force records Advisory Committee Act if it consisted
under the Federal Advisory Committee entirely of government officials.
Act. Public interest groups Judicial Watch
In July 2003, the appeals court ruled it and Sierra Club filed separate lawsuits
would not hear the case unless Cheney claiming that some participants of the
and the other government defendants task force were members of the energy
either asserted executive privilege or industry, making it an advisory
complied with the trial court's discovery committee subject to the act's openness
orders. requirements.
In a 7-2 decision, Supreme Court Cheney and the other government
justices said that the court of appeals defendants argued to dismiss the case
should rule on the case before further because it would violate the
proceedings in the trial court, primarily constitutional separation of powers. The
because the case involves important trial court refused and ordered the
questions of separation of powers and defendants to assert a claim of executive
because of the burden that would be privilege or proceed with the discovery
placed on the executive branch to comply phase.
with the discovery order. The defendants then appealed to the
"As this case implicates the U.S. Court of Appeals, which refused to
separation of powers, the Court of hear the case, and then to the Supreme
Appeals must also ask, as part of this Court.
inquiry, whether the District Court's Now, even if the appellate court rules
actions constituted an unwarranted against the administration, the case
impairment of another branch in the would be tied up in appeals well past the
performance of its constitutional duties," presidential elections in November.
Justice Anthony Kennedy wrote for the Meanwhile, in a separate lawsuit, a
majority. judge ordered the release of thousands
The suit stemmed from the creation of of the energy task force's documents
the National Energy Policy Development under the Freedom of Information Act.
Group by President George W. Bush in (6/24/04)
Board did not violate Sunshine Law
TALLAHASSEE-The State statements," Dean R. Plattner, assistant
Attorney's Office completed its review of state attorney for special prosecutions,
allegations that Lee County School said. "This does not provide sufficient
Board members violated the Florida basis to support either a more formal
Sunshine Law, determining that the investigation or any other action."
accusations were According to the Naples
unsupported. A C C E SS Daily News, Roberts testified in
Former Internal Auditor a federal case involving former
Martha Roberts testified in MEETIN GS Safety Director Ernie Scott,
March that school board where she said that school

members had broken the state's Open
Meeting Law and ethics rules. The State
Attorney's Office reviewed sworn
depositions of at least 18 witnesses and
monitored board meetings before saying
the accusations were insufficient to
warrant a full investigation.
"The only allegations of wrongdoing
were in the form of uncorroborated and
contradicted hearsay, and a claimed
incident by a single person which was
contradicted by numerous other sworn

board members conspired behind closed
doors to fire former Superintendent John
Sanders. She also accused them of
accepting campaign contributions from
unaccountable contractors and using e-
mails and cellular phones to avoid public
records laws.
Following the allegations, school
board members maintained their
innocence and said they welcomed the
independent investigation.
(6/26/04)

2 The Brechner Report September 2004

ACCESS RECORDS CONTINUED

Delray Beach citizen sues Mayor for

access to publishing venture documents

DELRAY BEACH- A citizen sued
Delray BeachMayorJeffPerlmanfor
access to documents detailing his
publishing venture with the Palm Beach
County School Board.
Deborah Bennett asked a judge to
force Perlman to release copies of
documents pertaining to Education
Today, a newsletter the board paid
Perlman to produce last year.
A contract between the board and
Perlman's company, Magnum Publishing,
said he would produce six editions in
2003 that would be mailed to "leaders and
education advocates in Palm Beach
County, South Florida and throughout
the Sunshine State and nation."
Bennett claimed that because the
contract awarded Perlman nearly $70,000
in public money, documents detailing the
project should be made public, according
to Florida's Public Records Law.
"Magnum is an agency subject to the
public records act because it published
and distributed Education Today on
behalf of the school board," Bennett's
attorney, Martin Reeder, wrote in the
lawsuit.
Perlman asked the judge to dismiss the

suit, arguing that he is a private
contractor and the requested documents
are exempt because they contain
proprietary business information.
Controversy over the issue sparked
when Bennett asked why, after the
newsletter became self-sufficient at the
contract's end, Perlman never reimbursed
any of the $69,140 he received. A draft of
the contract said he would refund the
district's money with advertising or
sponsorship donations, but that line did
not appear in the signed version of the
contract.
School board officials claimed they
have no documentation about Perlman
receiving advertising revenues for the six
issues they paid for. According to
spokesman Nat Harrington, they did not
receive any reimbursement, nor did they
expect to.
"If I can't get these records, it's kind
of sad that any time they put a contractor
in, the public can't get the records,"
Bennett said. "Sometimes you've got to
stand up. It seems like the government is
finding out more about us and we can
find out less and less about them."
(7/07/04)

Organization sues city, claims violation
BOCA RATON The League for In addition to accusations of
Educational Awareness of the Holocaust discrimination, the lawsuit detailed claims
(LEAH) filed a lawsuit against the city of that the city violated the state Sunshine
Boca Raton and The Rouse Co., claiming Law when it failed to provide public
they violated the state's notice of its sessions.
Open Meetings Law. A C C E SS Furthermore, CRA staff
The city's Community allegedly "refused to permit
Redevelopment Agency MEETINGS LEAH to attend the
(CRA) chose a plan evaluation and ranking of the
submitted by Rouse to renovate an old proposals."
cartoon museum. LEAH submitted a According to the Sunshine Law, state
competing proposal, which it said was and local agencies and officials must
dismissed in an unfair process that conduct their business in public and give
favored Rouse. reasonable notice of such meetings.
"We believe that the court can take a While officials didn't comment on the
look at this and see LEAH's was the only allegations of Sunshine Law violations,
proposal that met the criteria," LEAH's CRA Chairwoman Susan Whelchel
lawyer, Joseph Rebak, said. emphasized that LEAH's proposal was
The nonprofit group had proposed not selected because of its
renovating the building's space for a "discrepancies and problems on the first
humanities and arts museum, a gourmet floor [plan]."
grocery store and studio space for Boca FormerCRA ChairmanDave
Raton Educational Television. Freudenberg, who voted against LEAH's
The group is asking the courts to stop proposal, added that the organization
negotiations between Rouse and the city, "could not show the financial backing"
award it the building lease and pay its of its plan.
legal fees. (7/13/04)

PRIVACY

Judge rejects claim

against Fidelity

Federal Bank
WEST PALM BEACH A federal
judge rejected a $1.4 billion claim against
a West Palm Beach bank that bought
thousands of names from the Florida
Department of Highway Safety and
Motor Vehicles.
Infouryears, Fidelity Federal Bank &
Trust had purchased about 565,000
names of motorists in Palm Beach, Martin
and Broward counties, paying the
department a penny for each name. The
bank used the information to mail letters
to motorists suggesting they refinance
their car loans.
But the federal Driver Privacy
Protection Act makes it illegal for states
to sell motorists' information without
specific permission to do so. According
to The Palm Beach Post, bank officials
said they were unaware of the statute.
Broward County resident James
Kehoe, who received one of Fidelity
Federal's solicitations, was the lead
plaintiff in the case against the bank.
U.S. District Judge Daniel T.K. Hurley
rejected the lawsuit on grounds that
Kehoe didn't suffer damages as a result
of Fidelity Federal buying his name and
address from the state.
"You must knowingly violate the
statute," Louis Mrachek, the attorney
representing Fidelity Federal, said.
"Clearly, Fidelity did not know that the
state was selling information in violation
offederal law." (6/16/04)
-- -TIIf---
BRECHNER
REPORT
I ,,I,r,. , , ., ,

Internet court records: Privacyvs. open government
The Supreme Court appointed a committee on Our state policy is clear that government records are
Privacy and Electronic Access to Records and charged expected to be open but not clear on the standard by
it with making recommendations concerning the which that presumption is overcome. It is not enough
electronic accessibility of court records. The Court for an access advocate to oppose the creation of an
asked the committee to consider whether it should draw exemption by citing the presumption of openness. A
a distinction between "manual" electronic access and coherent argument against an exemption should address
remote electronic access to nonexempt records, whether the strength or weakness of the argument for overriding
it should curtail rules requiring disclosure of the presumption in that case.
information and Jon Kane Just as it is inappropriate to justify suppression of
The whether it should access on grounds that only those with a "need to
B ac k Pa e recommendfurtherexemptions know" should see public records, it is also inappropriate to
to the Legislature. ignore the undeniable fact that the interest in informational
By Jon Kaney The appointment, preceded privacy sometimes justifies exemptions and that the Intemet
by several years of judicial and emphasizes the inadequacy of our exemptions structure.
legislative committee work, was driven by concern that the Each argument fails to consider the competing interests
Internet has created a debate over public access to court records, underlying the position of the other side. It is illogical for access
On one side of the debate are access advocates, including the advocates to scorn the value of informational privacy only where
news media and many businesses that have become heavily public records are concerned, when these same advocates
dependent on Information Age technology for doing business, generally oppose the aggregation of personal data by private
On the other side are privacy advocates, including advocates and governmental interests. Efforts by the United States
for many elements of society that are susceptible to harm from government to amass a database on its citizens have been widely
the widespread dissemination of personal information, attacked in media opinion columns on grounds that such an
Too often, privacy advocates argue that the Internet has up- effort invades the privacy of citizens. Yet, when Florida public
ended our understanding of public access to information in the records are at stake, access advocates do not readily agree that
government's hands. Before the Internet, they say, records were nonexempt information should be protected from aggregation
"practically obscure." With the Internet, however, the records and widespread dissemination, even when it infringes on the
stream into private computers anonymously all over the world, interest of privacy.
Thus, they say the demise of practical obscurity in itself justifies An argument for Internet access that ignores the value of
restraint on access to public records, privacy is not persuasive, but the contrary argument that
This argument stumbles because its proponents cannot show advocates practical obscurity fails to consider the competing
that practical obscurity has ever been a predicate of the doctrine values-accountability, social capital and communities that are
of open government. The argument rejects the value of open served by open government.
government in favor of practically obscure government. The Court's committee will struggle with this issue in the
Access advocates contend that only those records that are coming months. It should be followed closely and both sides of
exempt from traditional public access should be excluded from the debate should focus on the proper juncture between the
Internet access. This argument lacks persuasive power because it interest in informational privacy and the interest in open

assumes existing statutory exemptions comprise a reasonable
system for distinguishing between information that should be
exempt on grounds of informational privacy and information that
should not be exempt. No access advocate could sincerely
believe that our present statutory exemptions rationally draw this
distinction.

government.

Jon Kaney is General Counsel for the First Amendment
Foundation and a member of the Supreme Court Committee on
Privacy and Electronic Access to Records. He is also an
attorney at Cobb & Cole in Daytona Beach, Fla.